Montana Administrative Register Notice 37-809 No. 19   10/13/2017    
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In the matter of the amendment of ARM 37.62.103, 37.62.106, 37.62.144, 37.62.501, 37.62.911, 37.62.1311, and 37.62.2101 pertaining to child support guidelines for the calculation of support obligations







TO: All Concerned Persons


           1. On November 2, 2017, at 9:00 a.m., the Department of Public Health and Human Services will hold a public hearing in Room 207 of the Department of Public Health and Human Services Building, 111 North Sanders, at Helena, Montana, to consider the proposed amendment of the above-stated rules.


2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Public Health and Human Services no later than 5:00 p.m. on October 20, 2017, to advise us of the nature of the accommodation that you need.  Please contact Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.


3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:


            37.62.103 DEFINITIONS For purposes of this chapter, unless the context requires otherwise, the following definitions apply:

            (1) through (6) remain the same.

            (7)  "Incarceration" means a parent is held in a correctional, detention, or treatment facility for more than 180 days.

            (7) through (15) remain the same, but are renumbered (8) through (16).


AUTH: 40-5-203, MCA

IMP: 40-5-209, MCA


            37.62.106 IMPUTED INCOME FOR CHILD SUPPORT (1) and (2) remain the same.

            (3) In all cases where imputed income is appropriate, the amount is based on the following:

 (a) the parent's recent work and earnings history;

 (b) the parent's occupational, educational, and professional qualifications; and

 (c) existing job opportunities and associated earning levels in the community or the local trade area.;

 (d)  the parent's age, literacy, health, criminal record, record of seeking work, and other employment barriers;

 (e)  the availability of employers willing to hire the parent; and

 (f)  other relevant background factors.

 (4) and (5) remain the same.

            (6) Income is not imputed if any of the following conditions exist:

            (a) remains the same.

            (b) a parent is physically or mentally disabled to the extent that the parent cannot earn income, or is incarcerated for more than 180 days;

            (c) through (e) remain the same.


AUTH: 40-5-203, MCA

IMP: 40-5-209, MCA


            37.62.144 SOCIAL SECURITY AND VETERANS BENEFITS (1) Social security and veterans benefits which are based on the earning record of either parent shall be considered in establishing new support orders or modification of existing orders under the following conditions:

             (a) through (d) remain the same.


AUTH: 40-5-203, MCA

IMP: 40-5-209, MCA


            37.62.501 TERMS AND CONDITIONS (1) through (12) remain the same.

            (13) If the customer is the obligee, the customer agrees that the value of CSED services exceeds any interest that might have accrued on collections that are held pending proof of validity, confirmation of funds, or possible adjustments from joint federal tax offsets, and thereby waives that interest. Joint federal tax offsets may be held up to six months pursuant to federal law.


AUTH: 40-5-202, MCA

IMP: 40-5-203, MCA


            37.62.911 FILING AND PROOF OF SERVICE (1) Whenever a rule or statute requires or permits a request for hearing, motion, brief, responsive answer or other document relating to the hearing to be filed with the department or the CSED, the place of filing shall be the OALJ. The location, mailing address, email address, and fax number of the OALJ shall be provided on the contested case notice and on each order, subsequent notice or other document mailed by the OALJ to a party. Excluding legal holidays, the hours for filing papers are between 8:00 a.m. and 5:00 p.m., Monday through Friday. Any papers presented or delivered after 5:00 p.m. shall be stamped the next business day. All original papers shall be filed with the OALJ and not the ALJ.

            (2) Facsimile (fax) filings and electronic filings may be accepted. If the fax or electronic copy is offered to prove a fact, the fax or electronic copy will be stamped "received" by the OALJ and the original document must be filed with the OALJ within 5 business days in order to be filed as of the received date of the fax or electronic copy. The fax or electronic copy and the original document must be identical, or the filing is void. If the original is not timely filed, the received fax or electronic copy shall be void except upon a finding of good cause by the ALJ.

            (3) remains the same.

            (4) Whenever service of a document is required by ARM 37.62.917, an original certificate of service shall be attached to each document filed under this rule including fax or electronic filings. The copies served on other parties or entities entitled to service shall also attach certificates of service. Certificates of service shall be affixed to the document and shall include the date the document was served, and the name of each party and entity served.

            (5) and (6) remain the same.


AUTH: 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825, 40-5-906, MCA

IMP: 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824, 40-5-906, MCA


 37.62.1311 PROCEDURES FOR DETERMINING FINANCIAL HARDSHIP PAYMENT PLAN TERMS (1) The CSED will use the following procedures as a guideline for the exercise of its discretion in determining the payment terms of a financial hardship payment plan:

            (a) the obligor must request a financial hardship determination in writing to the CSED office issuing the notice of intent to suspend stating the reasons a hardship adjustment is appropriate and the length of time it should remain in effect. The CSED will determine if the obligor is eligible for a reduction of the amount which would normally be paid or withheld, under a standard payment plan, to defray the support delinquency and interest and fees, if any;

            (b) the standard for determining the amount of the monthly payment toward support debt under a financial hardship payment plan will take into consideration the total net gross income and assets of the obligor and obligor's current household, the United States poverty index promulgated each year by the United States office of management and budget, the actual amount of allowable special expenses described in ARM 37.62.1307, and other support obligations for dependents not in obligor's household;

            (c) the CSED will determine the length of time the financial hardship determination will continue, based on the information provided by the obligor. The hardship determination period will not exceed 2 years unless there are extraordinary circumstances. The financial hardship payment plan will terminate at the end of the determined period, cessation of the financial hardship condition, or upon modification of the obligor's current/future support obligation, whichever occurs first. In the event the financial hardship condition continues after the end of such period, it shall be the obligor's duty to request further review prior to the date of expiration;

            (d) and (e) remain the same.


AUTH: 40-5-713, MCA

IMP: 40-5-710, 40-5-713, MCA


            37.62.2101 MODIFICATION OF SUPPORT ORDERS (1) and (2) remain the same.

            (3)  The CSED may conduct a review for modification of a support order which it is enforcing upon receipt of documentation that the obligated parent will be incarcerated for more than 180 days. The results of this review may be abatement of any support due during the period of incarceration and for 60 days following the release from incarceration.


AUTH: 40-5-202, MCA

IMP: 40-5-226, MCA




In December 2016, the U.S. Department of Health and Human Services adopted federal regulations titled "Flexibility, Efficiency and Modernization in Child Support Enforcement Programs." These regulations mandate a change in approach of the department's Child Support Enforcement Division (CSED) as to the child support obligations of incarcerated persons, as well as changes in the guidelines concerning imputed income. As a result, it is necessary to amend ARM 37.62.103, 37.62.106, and 37.62.2101.


ARM 37.62.103 is the child support guideline definitions rule. The rule requires amendment to include a definition of "incarceration" in the guideline. The amendment is necessitated by changes to 45 C.F.R. § 302.56(c)(3) which forbids states from treating incarceration as voluntary unemployment for the purposes of calculating a child support obligation.


ARM 37.62.106 is the child support guideline rule regarding imputed income.  The rule requires amendment to clarify the circumstances which support imputation of income to a parent. Changes to 45 CFR § 302.56(c)(1)(iii) require an imputation of income to take into consideration the specific circumstances of a parent, including assets, residence, employment and earnings history, job skills, educational level, literacy, age, health, criminal record, other employment barriers, record of job seeking, local job market, availability of employers willing to hire a parent, and prevailing earning levels in the community. The proposed rule amendments seek to clarify that persons who have been sentenced to jail or prison for a period of time to exceed 180 days are subject to the imputation of income circumstances and should not be considered to be voluntarily unemployed or underemployed.


ARM 37.62.2101 is the rule describing when the CSED may review an order for possible modification. The proposed amendment adds a new section to address the modification of support of incarcerated parents. This addition is necessitated by changes to 45 C.F.R. 303.56(3) and 45 C.F. R. 302.8(b)(2).


ARM 37.62.144 is the child support guideline rule, based on long-standing case law, In Re Marriage of Cowan (1996), allowing a child support credit when the children are receiving a benefit payment based on that parent's disability. While veteran's benefits for children are not as common as receipt of social security payments, the reasoning behind the allowance of a credit is the same as that for social security disability benefits: the payment is treated as a substitute for that parent's ability to support the family through wage income. The proposed change to ARM 37.62.144 is necessary to ensure consistent treatment of payments received from veteran's benefits.


ARM 37.62.501 is the rule setting the contractual terms and conditions for the CSED services in non-TANF cases. It is necessary to amend the rule to clarify under which circumstances the CSED will hold payments over the amount of $2,500 up to six months. The applicant will agree to waive the collection of interest on the amounts held, in exchange for IV-D services. This change is necessary because of an increase in the number and amount of fraudulent and non-sufficient funds payments made to the CSED through third party payment sources, and injured spouse refunds which are reclaimed by the Internal Revenue Service. The hold period will allow the CSED to verify the existence of the funds prior to distributing the funds to the custodial parent. Additionally, the rule requires updating to better inform the public how the CSED intends to collect overpayments. Both obligees and obligors may receive money to which they are not entitled. This can happen in several instances including when money is distributed, either as a collection or a refund, and the payment is later recalled by the issuing entity or is returned non-sufficient funds. In addition, for many years the CSED has had and used the ability to collect receivables through the state debt offset process of 17-4-105, MCA.


Additional rule changes are required regarding the terms and conditions under which child support is offered to parents who are not receiving public assistance.  In 2001, the CSED agreed to discontinue a hold on federal tax refund intercepts and to distribute collected funds within two business days. With the advent of online banking, changes are needed to the hold period. The CSED is experiencing increasing receivables growth as a result of the two-day turn around; funds enter the system and are disbursed to the custodial parent, only to be recalled by the issuing bank or entity.  The amendment of ARM 37.62.501 is necessary to stem the growth of receivables.


The proposed amendments to ARM 37.62.911 are necessary to broaden the rule to allow for persons to email documents to the office of the administrative law judge. The existing rule restricts persons to facsimile machines. It is reasonable and necessary to permit persons with business involving the CSED to use current technology to file and receive documents.


ARM 37.62.1311 describes the license suspension financial hardship payment plan process. When the CSED received the ability to suspend state-issued licenses pursuant to 40-5-701, MCA, et seq., the license suspension financial hardship payment plan process was modeled after the CSED's income withholding hardship process, which was a known and proven process.  Because the CSED revised its income withholding hardship process administrative rules in 2016, the CSED determined it necessary to amend this rule to again match the hardship process for license suspension. The result allows for streamlined processes, and greater case worker flexibility to make adjustments to each child support obligor's personal circumstances.


           5. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., November 10, 2017.


6. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.


7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.


8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.


9. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.



/s/ Caroline Warne                                       /s/ Marie Matthews for                                

Caroline Warne                                            Sheila Hogan, Director

Rule Reviewer                                             Public Health and Human Services



Certified to the Secretary of State October 2, 2017.

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